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Traditional knowledge (TK), indigenous knowledge (IK) and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. According to the World Intellectual Property Organization (WIPO) and the United Nations (UN), traditional knowledge and traditional cultural expressions (TCE) are both types of indigenous knowledge.
Traditional knowledge includes types of knowledge about traditional technologies of subsistence (e.g. tools and techniques for hunting or agriculture), midwifery, ethnobotany and ecological knowledge, traditional medicine, celestial navigation, craft skills, ethnoastronomy, climate, and others. These kinds of knowledge, crucial for subsistence and survival, are generally based on accumulations of empirical observation and on interaction with the environment.
In many cases, traditional knowledge has been passed for generations from person to person, as an oral tradition. Some forms of traditional knowledge find expression in culture, stories, legends, folklore, rituals, songs, and laws, languages, songlines, dance, games, mythology, designs, visual art and architecture, falling under the category of traditional cultural expressions.
International attention has turned to intellectual property laws to preserve, protect, and promote traditional knowledge. In 1992, the Convention on Biological Diversity (CBD) recognized the value of traditional knowledge in protecting species, ecosystems and landscapes, and incorporated language regulating access to it and its use (discussed below). It was soon urged that implementing these provisions would require revision[how?] of international intellectual property agreements.
This became even more pressing with the adoption of the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs), which established rules for creating and protecting intellectual property that could be interpreted to conflict with the agreements made under the CBD. In response, the states who had ratified the CBD requested the World Intellectual Property Organization (WIPO) to investigate the relationship between intellectual property rights, biodiversity and traditional knowledge. WIPO began this work with a fact-finding mission in 1999. Considering the issues involved with biodiversity and the broader issues in TRIPs (involving all forms of cultural expressions, not just those associated with biodiversity – including traditional designs, music, songs, stories, etc.), WIPO established the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC-GRTKF). WIPO Lex provides support for collections of laws concerning Traditional Knowledge.
The period of the early 1990s to the Millennium was also characterized by the rapid rise in global civil society. The high-level Brundtland Report (1987) recommended a change in development policy that allowed for direct community participation and respected local rights and aspirations. Indigenous peoples and others had successfully petitioned the United Nations to establish a Working Group on Indigenous Populations that made two early surveys on treaty rights and land rights. These led to a greater public and governmental recognition of indigenous land and resource rights, and the need to address the issue of collective human rights, as distinct from the individual rights of existing human rights law.
The collective human rights of indigenous and local communities has been increasingly recognized – such as in the International Labour Organization (ILO) Convention 169 (1989) and the Declaration on the Rights of Indigenous Peoples (2007). The Rio Declaration (1992), endorsed by the presidents and ministers of the majority of the countries of the world, recognized indigenous and local communities as distinct groups with special concerns that should be addressed by states.
Initial concern was over the territorial rights and traditional resource rights of these communities. Indigenous peoples soon showed concern for the misappropriation and misuse of their "intangible" knowledge and cultural heritage. Indigenous peoples and local communities have resisted, among other things: the use of traditional symbols and designs as mascots, derivative arts and crafts; the use or modification of traditional songs; the patenting of traditional uses of medicinal plants; and the copyrighting and distribution of traditional stories.
Indigenous peoples and local communities have sought to prevent the patenting of traditional knowledge and resources where they have not given express consent. They have sought for greater protection and control over traditional knowledge and resources. Certain communities have also sought to ensure that their traditional knowledge is used equitably - according to restrictions set by their traditions, or requiring benefit sharing for its use according to benefits which they define.
Three broad approaches to protect traditional knowledge have been developed. The first emphasizes protecting traditional knowledge as a form of cultural heritage. The second looks at protection of traditional knowledge as a collective human right. The third, taken by the WTO and WIPO, investigates the use of existing or novel sui generis measures to protect traditional knowledge.
Currently, only a few nations offer explicit sui generis protection for traditional knowledge. However, a number of countries are still undecided as to whether law should give traditional knowledge deference. Indigenous peoples have shown ambivalence about the intellectual property approach. Some have been willing to investigate how existing intellectual property mechanisms (primarily: patents, copyrights, trademarks and trade secrets) can protect traditional knowledge. Others believe that an intellectual property approach may work, but will require more radical and novel forms of intellectual property law ("sui generis rights"). Others believe that the intellectual property system uses concepts and terms that are incompatible with traditional cultural concepts, and favors the commercialization of their traditions, which they generally resist. Many have argued that the form of protection should refer to collective human rights to protect their distinct identities, religions and cultural heritage.
Literary and artistic works based upon, derived from or inspired by traditional culture or folklore may incorporate new elements or expressions. Hence these works may be "new" works with a living and identifiable creator, or creators. Such contemporary works may include a new interpretation, arrangement, adaptation or collection of pre-existing cultural heritage that is in the public domain. Traditional culture or folklore may also be "repackaged" in digital formats, or restoration and colorization. Contemporary and tradition based expressions and works of traditional culture are generally protected under existing copyright law, a form of intellectual property law, as they are sufficiently original to be regarded as "new" upon publication. Copyright protection is normally temporary. When a work has existed for a long enough period (often for the rest of the author's life plus an additional 50 to 70 years), the legal ability of the creator to prevent other people from reprinting, modifying, or using the property lapses, and the work is said to enter the public domain. Copyright protection also does not extend to folk songs and other works that developed over time, with no identifiable creators.
Having an idea, story, or other work legally protected only for a limited period of time is not accepted by some indigenous peoples. On this point the Tulalip Tribes of Washington state has commented that "open sharing does not automatically confer a right to use the knowledge (of indigenous people)... traditional cultural expressions are not in the public domain because indigenous peoples have failed to take the steps necessary to protect the knowledge in the Western intellectual property system, but from a failure of governments and citizens to recognise and respect the customary laws regulating their use". Equally, however, the idea of restricting the use of publicly available information without clear notice and justification is regarded by many in developed nations as unethical as well as impractical.
Main article: Indigenous intellectual property
Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know. It is a concept that has developed out of a predominantly western legal tradition, and has most recently been promoted by the World Intellectual Property Organization, as part of a more general United Nations push to see the diverse wealth of the world's indigenous, intangible cultural heritage better valued and better protected against probable, ongoing misappropriation and misuse.
In the lead-up to and during the United Nations International Year for the World's Indigenous People (1993), and then during the following UN Decade of the World's Indigenous People (1995–2004), a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of declarations and statements identifying, explaining, refining, and defining "indigenous intellectual property".
Article 27. 3(b) of the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs) sets out certain conditions under which certain biological materials or intellectual innovations may be excluded from patenting. The Article also contains a requirement that Article 27 be reviewed. In the TRIPs-related Doha Declaration of 2001, Paragraph 19 expanded the review to a review of Article 27 and the rest of the TRIPs agreement to include the relationship between the TRIPS Agreement and the 1992 Convention on Biological Diversity (CBD) and the protection of traditional knowledge and folklore.
The Convention on Biological Diversity (CBD), signed at the United Nations Conference on Environment and Development (UNCED) in 1993, was the first international environmental convention to develop measures for the use and protection of traditional knowledge, related to the conservation and sustainable use of biodiversity. By 2006, 188 had ratified the Convention and agreed to be bound by its provisions, the largest number of nations to accede to any existing treaty (the United States is one of the few countries that has signed, but not ratified, the CBD). Significant provisions include:
Article 8. In-situ Conservation
Each Contracting Party shall, as far as possible and as appropriate:
(j) Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices...
Article 10. Sustainable Use of Components of Biological Diversity
Each Contracting Party shall, as far as possible and as appropriate:
(c) Protect and encourage customary use of biological resources in accordance with traditional cultural practices that are compatible with conservation or sustainable use requirements
The interpretation of these provisions has been elaborated through decisions by the parties (ratifiers of the Convention) (see the Convention on Biological Diversity Handbook, available free in digital format from the Secretariat). Nevertheless, the provisions regarding Access and Benefit Sharing contained in the Convention on Biological Diversity never achieved consensus and soon the authority over these questions fell back to WIPO.
At the Convention on Biological Diversity meeting, in Buenos Aires, in 1996, emphasis was put on local knowledge. Key players, such as local communities and indigenous peoples, should be recognized by States, and have their sovereignty recognised over the biodiversity of their territories, so that they can continue protecting it.
The parties to the Convention set a 2010 target to negotiate an international legally binding regime on access and benefit sharing (ABS) at the Eighth meeting (COP8), 20–31 March 2006 in Curitiba, Brazil. This target was met in October 2010 in Nagoya, Japan, by conclusion of the Nagoya Protocol to the CBD. The agreement is now open for ratification, and will come into force when 50 signatories have ratified it. It entered into force on 12 October 2014. As of August 2020[update], 128 nations ratified the Nagoya Protocol. The Protocol treats of inter-governmental obligations related to genetic resources, and includes measures related to the rights of indigenous and local communities to control access to and derive benefits from the use of genetic resources and associated traditional knowledge.
n September 2020, the government of Queensland introduced the Biodiscovery and Other Legislation Amendment Act 2020, which introduced protections for accessing and using First Nations peoples' traditional knowledge in biodiscovery.
In 2001, the Government of India set up the Traditional Knowledge Digital Library (TKDL) as repository of 1200 formulations of various systems of Indian medicine, such as Ayurveda, Unani and Siddha and 1500 Yoga postures (asanas), translated into five languages – English, German, French, Spanish and Japanese. India has also signed agreements with the European Patent Office (EPO), United Kingdom Intellectual Property Office (UKIPO) and the United States Patent and Trademark Office (USPTO) to prevent the grant of invalid patents by giving patent examiners at International Patent Offices access to the TKDL database for patent search and examination.
Some of the legislative measures to protect TK are The Biological Diversity Act (2002), The Protection of Plant Varieties and Farmers' Rights Act (2001) and The Geographical Indication of Goods (Registration And Protection) Act, 1999.
The Intellectual Property Rights Policy for Kerala released in 2008 proposes adoption of the concepts 'knowledge commons' and 'commons licence' for the protection of traditional knowledge. The policy, largely created by Prabhat Patnaik and R.S. Praveen Raj, seeks to put all traditional knowledge into the realm of "knowledge commons", distinguishing this from the public domain. Raj has argued that TKDL cannot at the same time be kept confidential and treated as prior art.
In 2016, Shashi Tharoor, Member of Parliament from Thiruvananthapuram introduced a Private Bill (the Protection of Traditional Knowledge Bill, 2016) codifying the "protection, preservation and promotion" of traditional knowledge system in India. However the bill was criticised for failing to address the real concern of traditional knowledge.[further explanation needed]
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